Criminal law - Evidence - Admissibility - Hearsay - Exceptions - Whether maker of previous representation available to give evidence - Sexual offences - Rape - Complainant intoxicated at time of alleged offence - No memory of events - Evidence of complaint made on day following alleged offence - "Available to give evidence about an asserted fact" - Evidence Act 2008 (No 47) s 66 Dictionary cl 4(1).

Criminal law - Evidence - Admissibility - Discretion to exclude - "Unfairly prejudicial" - Evidence Act 2008 (No 47) ss 136 137.

Criminal law - Interlocutory appeal - Trial judge certifying - Interests of justice - Leave to appeal refused - Criminal Procedure Act 2009 (No 7) ss 295(3) 297.

Criminal law - Interlocutory appeal - Murder - Evidence - Tendency evidence - Nature of appellate review on interlocutory appeal - Importance of appellate restraint - Evidence Act 2008 (No 47) ss 97 101 - Criminal Procedure Act 2009 (No 7) s 295.

Criminal law - Confiscation - Automatic forfeiture offences - Tainted property - Restraining order - Ex parte application - Disclosure obligation - Material matters of fact - No general discretion to grant or refuse order - Criteria - Alleged drug trafficking offences - Lack of commerciality not a relevant matter - "Any relevant matters" - "Reasonable grounds" - Confiscation Act 1997 (No 108) ss 16 18 26 Sch 2.

Estoppel - Anshun estoppel - Fraudulent registered mortgage - Registrar of Titles - Registered proprietor's indemnity claim - Unsuccessful prior challenge to enforceability of mortgage - Registrar not party to prior proceeding - Summary dismissal on ground of Anshun estoppel - Decision vitiated by error of fact - Torrens title legislation not excluding Anshun estoppel - Registrar's defences challenging enforceability of mortgage doomed to fail - No risk of inconsistent judgments - Transfer of Land Act 1958 (No 6399) s 110.

Real property - Torrens system - Loss or damage - Indemnity - Entitlement - Registration of forged mortgage - Defences - Transfer of Land Act 1958 (No 6399) s 110(1)(b) 110(1)(c) 110(3)(a).

Contract - Consumer credit regulation - Registered fraudulent mortgage - Enforceability - Consumer Credit (Victoria) Code 1995 (No 41) ss 4(1) 5 6 8(1) 11 38(1) 38(4).

Appeal - Leave to appeal - Application - Competence - Supporting affidavit - Failure to exhibit proposed notice of appeal - Effect of non-compliance with rules - Irregularity - Court rule specifically providing for correction of non-compliance - General discretion to dispense with compliance - Affidavit accounting for absence of exhibit - Supreme Court (General Civil Procedure) Rules 2005 rr 2.01 2.04 65.07 - Victorian Civil and Administrative Tribunal Act 1998 (No 53) s 148.

Criminal law - Sexual offences - Rape - Elements - Defences - Consent - Accused's state of belief - Conduct inconsistent with innocence - Jury directions - Error - No resulting miscarriage of justice - Test - Sentence of six years' imprisonment with minimum term of three years and six months not manifestly excessive - Crimes Act 1958 (No 6231) s 37AA - Criminal Procedure Act 2009 (No 7) s 276.

Criminal law - Conviction - Guilty plea - Extended supervision order (ESO) - Non-compliance - Failing to comply with condition by commission of sexual offence - No double punishment by entry of conviction of offence of failure to comply with ESO and of sexual offence.

Criminal law - Sentencing - Failure to comply with extended supervision order - Charge determined summarily in County Court - Magistrates' Court jurisdictional limit - Maximum two years' imprisonment - Applicable to County Court - County Court judge sentencing on basis of higher maximum - Interpretation of Legislation Act 1984 (No 10096) s 51(1) - Sentencing Act 1991 (No 49) s 113(1) - Serious Sex Offenders Monitoring Act 2005 (No 1) ss 40 41 - Criminal Procedure Act 2009 (No 7) s 28.

Statutes - Interpretation - Whether "may" to be read as "must".

Charity and charitable gifts - Trust deed establishing bush nursing hospital - Direction concerning closure of hospital and aged care hostel - General charitable purpose - Cy-pregraves - Approval of cy-pregraves scheme proposed by consent.

Costs - Proceeding seeking declarations as to beneficial ownership of land - Proceeding discontinued on approval of cy-pregraves scheme in companion proceeding - General rule where no final determination on merits - No order as to costs.

Costs - Proceeding seeking application of trust property cy-pregraves - Defendants' costs awarded on solicitor and client basis to be paid out of the trust fund - Attorney-General's costs - Paucity of trust fund not a relevant consideration.

Practice and procedure - Appeal - Summary dismissal - Availability - Abuse of process - No prospect of success - Motor vehicle driver's licence - Accumulation of demerit points - Licence suspended by Roads Corporation - Appeal to Magistrates' Court - No appearance by Roads Corporation - Appeal allowed - Corporation applying for rehearing - Dismissal of driver's appeal on rehearing - Trial Division judge dismissing driver's judicial review application - Sole review and appeal ground untenable - Supreme Court (General Civil Procedure) Rules rr 56 64.05 - Road Safety Act 1986 (No 127) s 26AA - Magistrates' Court Act 1989 (No 51) s 110.

Practice and procedure - Appeal - Stay pending determination of appeal - Special or exceptional circumstances - Whether appeal would have been rendered nugatory - Appeal having slight prospects of success - Stay not justified.

Courts and judges - Magistrates' Court - Jurisdiction - Rehearing - Practice and procedure - Appeal against suspension of motor driver's licence - Parties - Necessary or proper - Roads Corporation - Road Safety (Drivers) Regulations 2009 reg 86(1)(b).

Legal practitioners - Disciplinary proceedings - Solicitor - Alleged misappropriation - Trust moneys - Misconduct - Dishonesty - Test - Onus of proof - Identification of clients - Fiduciary duties - Proposed retirement village project - Solicitor for the vendor - Solicitor also a director of vendor - Contract for sale of land - Solicitor receiving moneys directly from individual investors - Moneys received on behalf of vendor - Release of deposit on sales of land - Solicitor disbursing money to himself and business associate - Project not commenced - Whether solicitor owed fiduciary duty to individual investors - Sale of Land Act 1962 (No 6975) s 9AA(2)(b) (4) - Legal Practice Act 1996 (No 35) ss 3 137 174(3).

Trusts and trustees - Quistclose trust - Creation - Need for express mutual intention.

Criminal law - Criminal procedure - Motor vehicle offences - Elements - Expiration of limitation period - Charge - Particulars - Amendment - Magistrates' Court - Identification of applicable statutory provision - Amendment permissible if defendant apprised of case to answer within limitation period - Magistrate's power to amend of own motion - Questions for decision by magistrate - Case remitted to magistrate - Road Safety Act 1986 (No 127) ss 49(1)(e) 55 - Magistrates' Court Act 1989 (No 51) ss 26(4) 50.

Criminal law - Motor vehicle offences - Refusing to comply with requirement to accompany police officer to place to furnish breath sample - Requirement to accompany and to remain - Two discrete requirements with different content - Whether there had been a refusal - Validity of requirement - Communication - Components - Obligation to remain until sample of breath furnished and certificate given or until three hours after the driving need not be stated at time of requiring motorist to accompany officer to place - "Refuses to comply with a requirement" - Road Safety Act 1986 (No 127) ss 49(1)(e) 55.

Statutory interpretation - Two competing grammatical meanings - Context - Consequences.

Duties - Exemptions - Transfer of land - Change in trustees - Managed investment scheme - Custodianship agreement - Custodian - Responsible entity - Takeover of one scheme trust by another - Termination of custodianship agreement - Administrative convenience - Transfer of land by outgoing custodian to responsible entity and trustee of unit trust - Whether continuation or termination of pre-existing trust - Dutiable value - Whether only bare legal estate transferred for the purposes of valuation of dutiable property - "Change in trustees" - "Solely because of" - Duties Act 2000 (No 79) ss 7(1)(a) 10(1)(a)(i) 20(1)(b) 33(3)

Criminal law - Blackmail - Multiple counts - One alleged victim - Single count relating to second alleged victim - Trial judge refusing to sever single count - Burden of showing prejudice outweighed convenience not on accused - Refusal to sever occasioned no substantial miscarriage of justice in respect of other counts - Conviction of accused on severance count brought about substantial miscarriage of justice on that count - Crimes Act 1958 (No 6231) ss 371 372 568(1) Sch 6, r 2.

Courts and judges - Reasons for decision - Minimum requirements - Criminal trial - Refusal of application to sever counts in presentment - Failure to give formal reasons - Judge alluding to arguments explored in argument - Parties and appellate courts not be left guessing - Reasons to be explicitly stated.

Criminal law - Fair trial - Offences - Particulars - Minimum requirement - Uncharged acts - First occasion method of particularisation - Conviction invalid if not based on charged act - Sexual offences - Children under 16 - Multiple complainants - Prosecution more than three decades after alleged offences - Offences charged related to four alleged occasions - First occasion inadequately particularised - Later occasions specified by reference to first occasion - First occasion method incapable of overcoming latent ambiguity in offences - Jury directions compounding unfairness - No-case submission - Retrial ordered.

Criminal law - Trial - Juries - Deliberation - Majority verdict - Composition of verdict - Procedure - Communication with trial judge - Jury not to inform judge of details of votes cast - Obligation of judge to advise counsel of precise content of jury's note - Failure to advise counsel a denial of procedural fairness - Open to judge to discharge jury - Appeal allowed - Sexual offences - Incest - Indecent act with a child - Juries Act 2000 (No 53) ss 46 78(2) 78(3).

Real property - Title by adverse possession - Acts of possession - Animus possidendi - Indicia - Evidence - Carriageway easement - Dominant tenement owner claiming possessory title to easement - Land in easement enclosed from servient tenement by owner of dominant land - Fence and gate - Intention to exclude strangers but not true owner - Municipal rates for easement paid by claimant unknowingly - Maintenance and improvements of easement - Consistent with easement - Animus possidendi formed only after servient tenement owners informed claimant of proposed redevelopment - Proposal consistent with rights of dominant tenement but inconsistent with possessory rights - Limitation of Actions Act 1958 (No 6295) ss 8 9(1) 14 18 - Transfer of Land Act 1958 (No 6399) ss 60 61 62.

Criminal law - Sexual offences - Rape - Consent - Indecent assault - Multiple counts - Application for severance properly rejected by judge - Similar fact evidence - Cross-admissibility - Directions to jury - Defence of legitimate medical treatment - Mens rea - Required direction as to awareness of absence of consent - Reasonableness of accused's belief as to consent - Jury directions deficient - Uncharged acts - Proof beyond reasonable doubt - Permissible inferential reasoning - Accused resentenced - Crimes Act 1958 (No 6231) ss 35 36 37 37AAA 37AA 38 372 Sixth Schedule, r 1.

Criminal law - Fair trial - Adjournment - Discretion - Fitness to plead and stand trial - Adjournment application refused at commencement of trial - Discretion miscarried - Miscarriage of justice - Accused behaving eccentrically during course of trial - Fresh evidence on appeal - New trial ordered - Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (No 65) ss 6(1), 8(4), 9, 11

Criminal law - Sexual offences against child - Jury directions - Adequacy - Evidence - Context relationship evidence - Propensity relationship evidence - Uncharged acts - Failure of trial judge to give Grech propensity warning - Failure of trial judge to direct jury on use of relationship evidence sought to be used by both Crown and defence - Evidence Act 2008 (No 47) ss 55 56.

Criminal law - Conviction - Order of imprisonment by Supreme Court - Statutory appeal by prisoner pending - Application for writ of habeas corpus - Conviction and sentence not open to collateral challenge - Criminal Procedure Act 2009 (No 7) s 274.

Prerogative writs - Habeas corpus - Availability.

Criminal law - Interlocutory appeal - Standard of appellate intervention - House v R test - Evidence - Admissibility - Discretion to exclude improperly or illegally obtained evidence - Evidence obtained pursuant to search warrants - Affidavits supporting warrants signed but not sworn or affirmed - Evidence excluded - Discretion to exclude not wrongly exercised - Gravity of impropriety - State of mind of police officers - Finding reasonably open to judge that contravention deliberate - Any error as to finding of recklessness not of assistance to appellant - Appeal dismissed - Discretion not necessarily to be exercised in same way in future cases - Drugs Poisons and Controlled Substances Act 1981 (No 9719) s 81 - Evidence Act 2008 (No 47) s 138.

Restitution - Quantum meruit - Work and labour done - Reasonable remuneration - Ascertainment of value - Land planning and development services - Inclusion of land in urban growth boundary - Obtaining rezoning and planning approvals - Anticipated subsequent residential subdivision phase - Disparity in risks of two phases - Fairness and justice - Claim calculated by reference to increased land value misconceived - Lost opportunity claim misconceived - Reduction of sum awarded to reflect deficiencies in plaintiff's method of calculating value of work - Connection between work done and benefit to defendant - No evidence of relevant industry practice.

Practice and procedure - Judgment - Interest - Date from which interest should be awarded - Pre-litigation interest - Quantum meruit claim - Work and labour done - Delay in quantification - Defendant's repeated offers to pay a quantum meruit - Whether equity can supplement statutory right with award of compund interest - Supreme Court Act 1986 (No 110) s 60.

Precedent - Court of Appeal - State intermediate appellate courts - Whether decisions binding until and unless High Court decides to contrary.

Criminal law - Sentencing - Aggravating circumstances - General deterrence - Specific deterrence - Prisoners assaulting fellow prisoner - Unique contextual considerations.

Criminal law - Summary offences - Scope - Public order - Resisting member of police in execution of duty - Report of person leaving restaurant without paying for meal - Police approaching suspect in street - Suspect fleeing when police requested to speak to him - Not in course of arrest - No obligation to stop when requested to do so - No obligation to answer questions - Charge dismissed - Appeal dismissed - "In the execution of his duty" - Summary Offences Act 1966 (No 7405) s 52(1).

Criminal law - Interlocutory appeal - Evidence - Admissibility - Ruling - Discretion - Admissions - Sexual offences - Attempt to procure act of penetration by threats - Pretext telephone conversation occurring at police request - Complainant recording conversation - Recording device provided by police - Device not used, installed or maintained by police - Recording not unlawful - No right of privacy infringed - No error in decision to admit evidence - "Use" - "Install" - "Maintain" - Crimes Act 1958 (No 6231) s 57(1) - Surveillance Devices Act 1999 (No 21) ss 6 11 - Evidence Act 2008 (No 47) ss 90 138.

Human rights - Privacy - Characteristics of right - Overhearing of private telephone conversation - Surreptitious tape recording - Disclosure of criminal conduct - No interference with privacy - Charter of Human Rights and Responsibilities Act 2006 (No 43) ss 13(a) 32(1).

Practice and procedure - Discovery - Production of documents - Appeal - Leave to appeal - Coleraine bushfire class action - Interlocutory order for production - Legal professional privilege - Expert reports - Provision of legal advice - Whether dominant purpose - Ascertainment of purposes - Anticipated litigation - Corporation - Reports commissioned by in-house lawyer - Subjective view of in-house lawyer not determinative - Guiding mind of corporation - Chief executive officer (CEO) - Failure to call CEO concerning purpose - Jones v Dunkel inference justified - Leave to appeal refused - Evidence Act 2008 (No 47) ss 118 119

Administrative law - Victorian Civil and Administrative Tribunal - Jurisdiction - Review of administrative decisions - Director of Housing - Tenancy - Decision to apply for eviction order - Validity - Compliance with Charter of Human Rights and Responsibilities - Tribunal lacking jurisdiction to undertake collateral judicial review - Victorian Civil and Administrative Tribunal Act 1998 (No 53) - Residential Tenancies Act 1997 (No 109) ss 1(d) 344 345 446(c) - Charter of Human Rights and Responsibilities Act 2006 (No 43) ss 13(a) 32 38 39.

Human rights - Right to home and family - Freedom from unlawful or arbitrary interference - Public housing - Eviction - Charter of Human Rights and Responsibilities Act 2006 (No 43) ss 7(2) 13(a) 36 39.

Landlord and tenant - Public housing - Director of Housing - Power - Application for possession order - Validity - Housing Act 1983 (No 10020) s 14(1)(g) - Residential Tenancies Act 1997 (No 109) ss 1(d) 344 345 - Charter of Human Rights and Responsibilities Act 2006 (No 43) ss 13(a) 38 39.

Administrative law - Victorian Civil and Administrative Tribunal - Merits review - Occupational licensing - Public transport - Taxi-cab driver licence - Accreditation - Statutory criteria - Suitability - Public care objective - Relevant considerations - Director of Public Transport refusing accreditation - Applicant acquitted of murder on grounds of insanity 18 years earlier - Community expectations - Decision-maker's reliance on fact that applicant was a person who caused death of another person - Decision-maker not bound to consider effect of accreditation on public confidence - Decision-maker posing wrong question - Decision set aside by tribunal - No error of law by tribunal - "Suitable in other respects to provide the service" - Transport Act 1983 (No 9921) Pt VI, Div 6.

Damages - Assessment - Matters to be considered in reduction of damages - Benefit received after accrual of cause of action - Negligence - Motor vehicle accident - Repair costs - Legislative prohibition on charging for or recovering repair costs from owner where vehicle repaired without written approval - Whether windfall to be disregarded - Legislative intention - Accident Towing Services Act 2007 (No 30) s 153.